Coca-Cola Company v PepsiCo Inc (No 2)

The Coca-Cola Company, an Australian beverage company, filed an application against PepsiCo Inc, an American multinational food, snack, and beverage corporation, alleging that PepsiCo's sale of its glass cola bottle, the Carolina Bottle, constituted misleading or deceptive conduct under the Competition and Consumer Act 2010 (Cth), and that it constituted passing off under the common law. Coca-Cola also claimed that the Carolina Bottle constituted an infringement of its registered trade marks. The court was required to determine whether the Carolina Bottle constituted misleading or deceptive conduct, passing off, or trade mark infringement. The court found that the Carolina Bottle was not deceptively similar to Coca-Cola's trade marks, and that Coca-Cola had not established a sufficient reputation in its Contour Bottle to constitute passing off. The court found that the Carolina Bottle did not create a likelihood of deception or confusion in the minds of consumers. The court dismissed Coca-Cola's application in its entirety. The court found that Coca-Cola had not established a sufficient reputation in its Contour Bottle to constitute passing off, as the Carolina Bottle was not deceptively similar to the Contour Bottle. The court found that consumers recognised colour and shape before they recognised symbols and words, but that the Carolina Bottle was not deceptively similar to Coca-Cola's trade marks. The court found that Coca-Cola had not established that consumers would make a purchasing decision based on the shape, outline, or silhouette of the glass cola bottle. The court found that PepsiCo did not make any representations to consumers through the sale of the Carolina Bottle that its business was associated with Coca-Cola's business.